Recent Developments in the Law (cont.)

LIMITATIONS ON POLICE ABILITY
TO SEARCH CAR

Case Name: People v.
Bates , District: 6 DCA , Case #: H037910Opinion Date: 12/12/2013
, DAR #: 16166Case Holding: A vehicle
detention that violates the Fourth Amendment is not
made lawful simply because police learn that one of
the passenger's is a probationer with a search condition
after the fact. While investigating a report of a stolen
cell phone, Deputy Sheriff Gidding learned the following
information: (1) the reported theft occurred two hours
earlier; (2) the suspect was a young black male wearing
blue; (3) the suspect may have been Marcus Bates, a
probationer living at a nearby apartment complex; (4)
the Bates' family had a gold van, which the deputy had
been instructed to watch for; and (5) there was a report
of someone matching the suspect's description walking
away from Bates' apartment complex toward a mobile home
park. Deputy Gidding went to the mobile home park and
stopped a tan car driving toward the park's exit. He
later testified that his sole reason for the stop was
that "there were people in the car." The deputy
found Bates in the car and located evidence that appellant
moved to suppress. The trial court denied the motion.
Held: Reversed. Considering the facts in the totality
of the circumstances, Deputy Gidding had no reasonably
articulable suspicion that either the occupants of the
tan car or the car itself may have been involved in
criminal activities. The detention was based solely
on generalized suspicion and was unlawful as a result.
Appellant's probation search condition did not make
the stop reasonable because Gidding did not know appellant
was in the vehicle when he stopped it. The probation
condition also was not an intervening circumstance that
sufficiently attenuated the Fourth Amendment violation.
Disagreeing with People v. Durant (2012) 205 Cal.App.4th
57, the court found that discovery of a probation condition
after the fact will not necessarily sanitize the unlawful
detention. This is particularly true where the detaining
officer, without knowledge of the condition, unlawfully
seizes a defendant in the hopes that something might
turn up.

TAPE RECORDING CONVERSATIONS
WITHOUT CONSENT

Case Name: People v.
Algire , District: 2 DCA , Division: 4 , Case #: B244557Opinion Date: 12/17/2013
, DAR #: 16295Case Holding: The "Truth-in-Evidence"
provision of Proposition 8 (Cal. Const., art. I, § 28,
subd. (f), par. (2)) abrogated the exclusionary rule
in Penal Code section 632, which bars admission of confidential
communications that are recorded without consent. At
appellant's trial, his stepdaughter Stevie testified
that he acted inappropriately toward her and sexually
molested her after she moved in with appellant and her
mother when she was 17-years-old. In an audio recording
admitted into evidence, appellant implicated himself
in the sex offense. Stevie had secretly made the recording
without appellant's consent. On appeal, he contended
that the court erred in admitting the recording. Held:
Affirmed. Penal Code section 632, enacted in 1967, prohibits
eavesdropping or intentionally recording a confidential
communication without the consent of all parties to
the communication, and bars all such communications
in judicial proceedings. Here, the court determined
that the Truth-in-Evidence provision, enacted in 1982,
abrogated this exclusionary rule. A later nonsubstantive
amendment to section 632 in 1985, addressing cellular
telephone communications, did not reinstate the exclusionary
rule in section 632, subdivision (d) as there was no
legislative intent to lessen the effects of section
28(f)(2). The recording also was not prohibited under
the Fourth Amendment as Stevie was not acting as a government
officer or agent. The court declined to decide whether
section 633.5, which provides an exception to section
632's exclusionary rule by allowing one party to record
a confidential "communication for the purpose of
obtaining evidence reasonably believed to relate to
the commission by another party to the communication
of . . . any felony involving violence against the person,"
applied in this case.

Where, under state law, IAC
claims must be raised in an initial-review collateral
proceedings, a procedural default will not bar a federal
habeas court from hearing those claims if, in the initial-review
collateral proceeding, there was either no counsel or
counsel in that proceeding was ineffective. [Note:
Companion case isLopez v. Ryan, 12-99001, DAR 6291]
Both cases here dealt with claims of ineffective assistance
of trial and post-conviction counsel, where petitioner
failed to meet procedural requirements. Under Martinez
v. Ryan , 132 S.Ct. 1309, decided March 20, 2012, the
U.S. Supreme Court held that where, under state law,
claims of ineffective assistance of trial counsel had
to be raised in an initial-review collateral proceeding,
a procedural default would not bar a federal habeas
court from hearing a substantial claim of ineffective
assistance of counsel if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective. In both cases here the court
found that the claims were not substantial and declined
to grant relief.

In a Fourth Amendment analysis,
mere conclusions of the police officer do not establish
probable cause justifying an exception to the Fourth
Amendment and an officer's investigatory motive for
vehicle impoundment is relevant to the validity of the
community caretaking exception. While conducting
surveillance on a suspected stash house, officer Henkel
observed appellant enter and then leave, holding a large
white box. He placed the box in his truck and drove
away. Henkel monitored him over the next few hours and
eventually asked a police unit to develop a lawful reason
to conduct a traffic stop. The police officers stopped
appellant for failing to come to a complete stop. The
officers impounded the vehicle, searched it and found
the white box which contained two kilograms of cocaine.
Appellant was arrested and taken into custody only after
the vehicle was impounded and the inventory search had
resulted in the discovery of cocaine. At a subsequent
suppression hearing, Henkel made a conclusory statement
that the white box came from a "suspected narcotics
stash house." He also testified that appellant's driving
was "counter-surveillance," indicating drug trafficking.
The appellate court found that Henkel's conclusory statements
were akin to an anonymous tip and entitled to little
(if any) weight in determining whether there was reasonable
suspicion to stop the vehicle. As to Henkel's belief
regarding appellant's driving, the described driving
was consistent with innocent behavior and insufficient
to establish probable cause. Finally, the court noted
that the community caretaking exception to the Fourth
Amendment did not justify the search. Under the community
caretaking exception to the Fourth Amendment, police
can impound vehicles that jeopardize public safety and
search them per department policy. But an inventory
search cannot be a ruse for a general rummaging to discover
incriminating evidence and the officers' motive in conducting
the impound are relevant. Because the evidence here
reflected that the impoundment was a pretext to search
for narcotics, the community caretaking exception did
not apply. The denial of appellant's motion to suppress
was reversed.

The trial court does not have
jurisdiction to vacate a final judgment via a nonstatutory
motion when there are other means of challenging the
judgment but the time limits to exercise them have expired.
Appellant came to the U.S. from Afghanistan when he
was a child and was eventually granted refugee status.
In 2005, by his guilty plea, appellant was convicted
of possession of marijuana for sale. This offense qualifies
as an aggravated felony and is a deportable offense.
The plea form submitted to the court advised appellant
of immigration consequences pursuant to Penal Code section
1016.5 and the court verbally advised him of the consequences.
Appellant subsequently successfully completed his probation
and the court granted relief under Penal Code section
1203.4. In 2010, appellant pled guilty to two counts
of robbery and was granted probation. In 2011, he was
placed in immigration removal proceedings. In the trial
court he then filed an action he titled "a nonstatutory
motion to vacate the [conviction] for possession of
marijuana for sale", which was denied. The appellate
court affirmed. Appellant's vehicles for relief were
via a state habeas corpus action or Penal Code section
1018, both of which have time restrictions. A nonstatutory
motion will not serve as a safety net where the judgment
has become final and the time limitations for other
remedies have expired.

In a misdemeanor case, a defendant
may appear for court proceedings through counsel and
a local rule of court with a blanket policy requiring
appearance of a defendant in a misdemeanor case is invalid.
Penal Code section 977, subdivision (a) provides that
a misdemeanor defendant may ordinarily appear through
counsel. In an appropriate case, the court can order
a defendant be present for arraignment, at the time
of plea and sentencing, but must first make an individual
assessment of the case. El Dorado County rule of court
5.11.02 required all defendants to be personally present
for the calendared Readiness and Settlement Conference.
In this case, real party in interest argued that the
appearance was necessary to hold a meaningful settlement
conference. The appellate court found this rule to be
in violation of the statute, as well as relevant case
law, and granted a peremptory writ of mandate directing
the county not to apply the rule in misdemeanor cases
and to excuse misdemeanor defendants from personally
appearing at the readiness and settlement conference
where counsel is empowered to represent their interests,
absent a finding of good cause in a particular case
or a specific statutory exception.

Recantation by the victim does
not support a motion to withdraw plea. In exchange
for a promise of probation and dismissal of other counts,
appellant pled guilty to spousal abuse. Prior to sentencing,
she moved to withdraw her plea, contending that it was
not knowing and intelligent because, at the time she
entered her plea, she was unaware that the victim would
recant and it was involuntary as a result of IAC, who
failed to interview the victim. The appellate court
found no abuse of discretion in the denial of the motion.
Penal Code section 1018 provides that a defendant may
withdraw a guilty plea if good cause is shown. To establish
good cause, defendant must show by clear and convincing
evidence that she was operating under any factor overcoming
exercise of free judgment and that absent such a factor
she would not have entered the plea. Here, the trial
court did not abuse its discretion in placing little
value on the victim's recantation subsequent to appellant's
entry of the guilty plea and the minimal weight placed
on the recantation was relevant in the trial court's
finding that appellant failed to meet her burden of
establishing factors overcoming free judgment. The court
also found that there was no adequate showing of ineffective
assistance as a result of counsel's failure to interview
the victim. In view of appellant's history of domestic
violence against the same victim and existing protective
orders, counsel's failure to interview was viewed as
a reasonable tactical decision. Even if counsel was
ineffective by failing to interview the victim, appellant
failed to show that a reasonable probability existed
that absent the alleged ineffectiveness, she would not
have pled guilty because the evidence against her was
not weak, and she received a favorable resolution with
her guilty plea.

Case Name: People v.
Chavez , District: 5 DCA , Case #: F061645Opinion Date: 5/11/2012
, DAR #: 6219Case Holding:Burglary requires evidence of
entry into a building, with building defined as having
four walls and a roof. By jury trial, appellant
was convicted of conspiracy to commit second degree
burglary, amongst other offenses. The evidence presented
was that appellant, along with coconspirator Phillips,
agreed to steal gasoline from a car in a wrecking yard;
Phillips entered the fenced yard and stole gasoline
from a junked car; appellant was near the fenced area
and helped carry the gasoline away. There was no evidence
that Phillips entered a building. Penal Code section
459 defines burglary as entry into a variety of specified
buildings and "other building," with the intent to commit
larceny or any other felony. California cases dating
back to the 1800's require a building to have four walls
and a roof; other states with a statute similar to California's
do not define burglary otherwise; the plain meaning
of a building is anything with walls and a roof. As
a burglary does not include a wrecking yard, there was
insufficient evidence to support the conviction for
conspiracy and it was reversed, with the corresponding
eight-month consecutive sentence stricken.